Respondent Mark B. Fisher seeks interlocutory review of an Administrative
Law Judge's ("ALJ") denial of his motion to disqualify the
ALJ for bias. Fisher argues that the ALJ's statements in another case
and in remarks attributed to the judge in a newspaper article demonstrate
that the ALJ is predisposed to finding that he engaged in unlawful acts.
Fisher contends the judge's continued participation in this matter
will deny him his right to a fair hearing. The Division of Enforcement
("Division") opposes the application, emphasizing Fisher's
failure to establish the existence of extraordinary circumstances
justifying immediate review by the Commission. This is the second time in
this proceeding that respondent has sought to disqualify the ALJ. For the
reasons that follow, we again deny interlocutory review.

In November 1995, the ALJ assigned to this matter issued an initial
decision in an unrelated case, In re Reddy, [Current Transfer
Binder] Comm. Fut. L. Rep. (CCH) 26,544 (ALJ Nov. 2, 1995). Toward the
end of his decision, the judge devoted several paragraphs to his belief
that the trading and auditing systems maintained by futures exchanges did
not take sufficient advantage of available technological innovations to
forestall opportunities for violative floor trading. In light of the
Reddy initial decision, on February 15, 1996, Fisher asked the ALJ to
recuse himself from the instant case. Upon the ALJ's denial of
Fisher's motion on March 4, 1996, Fisher sought interlocutory review
which we denied. In re Fisher, [Current Transfer Binder] Comm.
Fut. L. Rep. (CCH) 26,752 (CFTC July 22, 1996).

In February, 1997, Fisher again moved the ALJ to recuse himself for bias
based on statements he made subsequent to the Reddy decision. The
ALJ denied the motion. Fisher seeks interlocutory review of the ALJ's
second denial.

Fisher asserts that the ALJ has expressed a prejudicial belief that
ordinary traders generally are inclined to break the law, and that
consequently, the ALJ is biased in favor of finding that Fisher committed
trading violations. Fisher has submitted a copy of a news article
published in Crain's Chicago Business, dated January 6, 1997,
which attributes the following remark to the ALJ: "Why wouldn't
you take a tick or two if the opportunity is there? You'd have to be
a potatohead not to do it." Fisher also points to a statement in
In re Mayer, et al., [Current Transfer Binder] Comm. Fut. L. Rep.
(CCH) 26,736 at 44,058 (ALJ May 15, 1996), wherein the same ALJ stated,
"It is no surprise that floor brokers of ordinary rectitude might
fail to observe the letter and the spirit of the law in connection with
the handling of customer orders, and that traders with equal rectitude
might accommodate a broker in such an endeavor." Fisher claims that
these two statements, when viewed in conjunction with the ALJ's
remarks in Reddy, demonstrate that the ALJ is predisposed to find
traders liable for trading violations, raise an inference that the ALJ is
improperly predisposed against his case, and reveal that the ALJ cannot
assess the issues raised in this proceeding in an impartial manner.

The Division challenges Fisher's interpretation of the remarks as
exaggerated. It argues that the judge's comments, in the context in
which they were made, address specific trading issues.

As we stated in our earlier order denying review, we will not resolve a
dispute over disqualification of an ALJ on an interlocutory basis, absent
a showing that extraordinary circumstances warrant immediate
intervention. Fisher 26,752 at 44,114. In this instance, the
alleged bias does not rise to the level justifying our immediate
intervention. On their face, the remarks of the ALJ quoted in the news
article do not appear to establish that the judge is biased against
Fisher or his case. Within the context of the article, the remarks
suggest that the ALJ believes that intragroup trading tempts traders to
trade exclusively within the group rather than with the broad spectrum of
traders in the pit. The article also reports the ALJ as favoring a better
audit trail system. Similar comments by the ALJ regarding the audit trail
system were addressed in our earlier order.

The challenged observations by the ALJ in Mayer, in context, are a
call for a ban on dual trading and better enforcement of exchange
recordkeeping rules. As we stated in our earlier order, the views
reflected in the ALJ's remarks do not establish that he is either
unable or unwilling to act impartially in assessing whether the weight of
the evidence demonstrates that Fisher actually committed the specific
wrongdoing alleged in the complaint.

In light of his limited showing, Fisher has failed to establish the type
of extraordinary circumstances that would justify immediate review of the
ALJ's ruling. Accordingly, respondent's application for
interlocutory review is denied.

IT IS SO ORDERED.

By the Commission (Chairperson BORN and Commissioners DIAL, TULL, HOLUM,
and SPEARS).